United States v. Hurse
| Decision Date | 20 April 1973 |
| Docket Number | No. 72-1266.,72-1266. |
| Citation | 477 F.2d 31 |
| Parties | UNITED STATES of America, Appellee, v. Edward HURSE, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Samuel Raban, St. Louis, Mo., for appellant.
Robert B. Schneider, Asst. U. S. Atty., St. Louis, Mo., for appellee.
Before MATTHES, Chief Judge, ROSS, Circuit Judge, and VAN PELT, Senior District Judge.*
This case involves an appeal from a conviction, upon a jury verdict, of guilty to a charge of possession of an unregistered shotgun, in violation of 26 U.S.C. §§ 5861(d), 5871 (1970). Prior to his trial, appellant filed a motion to suppress, pertaining to a shotgun seized by the police, on the ground that the police lacked probable cause to make an entry into appellant's quarters to arrest him, the arrest having taken place without a warrant. During the suppression hearing, the police testified that a reliable informant had delivered to them heroin allegedly purchased from appellant; the informant also told them that appellant had answered the door with a shotgun. The motion was overruled. The appellant's request for the name of the informant, on the ground that his testimony was favorable to appellant, was denied. The prior appeal resulted in remand by this court.1 The order of remand directed the district court to hold a hearing on the probable cause issue, and stated, in part: "The identity of the informant should be disclosed to the court and the court should satisfy itself on the issue of probable cause for the initial entry."
Pursuant to this order, the district court conducted an evidentiary hearing in camera at which the informant was examined by the district judge in the absence of all persons except an official court reporter, who reported the informant's testimony and thereafter transcribed the same. The testimony of the informant was sealed and transmitted to this court.
The informant testified at the in camera hearing that he did not enter the building where appellant was residing, that he did not purchase narcotics that evening from appellant, and that he had had no contact with the police involved in the raid after the time they sent him to appellant's home.
In order to resolve the conflict in testimony between the informant and the officers, a further proceeding, which in effect was a supplemental suppression hearing, was held by the court for the purpose of examining the police officers who were present at the scene of the arrest and seizure. At this hearing the attorneys for appellant were present and were afforded the opportunity to, and they did in fact, examine and cross-examine the five police officers who testified.
The appellant, however, was not personally present at this hearing. A colloquy between the judge and appellant's attorneys led the court to believe that counsel for the appellant were not "raising the issue of the defendant not being present . . . ." After the hearing the district court filed a memorandum and supplemental findings in which the court concluded, "that the police officers had probable cause to believe that a felony sale of narcotics had just been committed and had probable cause to make the initial entry to the premises . . . for the purpose of demanding admission to defendant's apartment . . . in order to arrest him." The findings were certified to this court for action in accordance with its opinion.
In his second appeal, appellant argued, among other things, that the district court committed prejudicial error in holding the supplemental evidentiary hearing and taking the testimony of the police officers in his absence. This court concluded that "this supplemental suppression hearing was a critical stage of the proceedings and that the defendant was entitled to be personally present" and entered an "Order of Remand For Limited Purpose". The purpose of the order was to provide an evidentiary hearing, at which appellant would be present, and for a certification of findings and conclusions by the district court to this court.
In accordance with this order, the district court conducted another evidentiary hearing of the police officers in the presence of appellant and his counsel. The court examined seven police officers who had participated in the seizure and arrest including one person, Glen Vaughn, who was no longer with the police force. Each person testifying was excluded from the courtroom prior to testimony. Although in each case the testimony exhibited minor, nonmaterial variations from the...
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State v. Sloan
...guilt or innocence but ... whether the evidence leading to the appellants’ convictions was tainted"), with United States v. Hurse , 477 F.2d 31, 32-33 (8th Cir. 1973) (per curiam) (determining that a supplemental evidentiary hearing was a critical stage where the evidence taken concerned th......
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State v. Tiller, 15186
...is presented by both sides, the presence rule does not ordinarily apply to other types of pretrial hearings. 10 E.g., United States v. Hurse, 477 F.2d 31 (8th Cir. 1973), cert. denied, 414 U.S. 908, 94 S.Ct. 245, 38 L.Ed.2d 146; United States v. Dalli, 424 F.2d 45 (2nd Cir. 1970), cert. den......
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...has been made. 438 U.S. at 170, 98 S.Ct. 2674; But see United States v. Hurse, 453 F.2d 128, 130-31 (8th Cir. 1971), On remand, 477 F.2d 31 (per curiam), Cert. denied, 414 U.S. 908, 94 S.Ct. 245, 38 L.Ed.2d 146 (1973); United States v. Swanson, 399 F.Supp. 441 (D.Nev.1975); United States v.......
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